The following papers were considered in deciding these discovery motions: Papers considered Numbered Notice of Motion by Andrew La Bella, Esq., for compliance with disclosure demands and other relief, dated July 17, 2019; Affirmation of Andrew La Bella, Esq., in support of motion for compliance, dated July 17, 2019, with Exhibits A through F; Memorandum of Law in support of motion for compliance, dated July 17, 2019; Affirmation of Good Faith (re: Charles Hoppenstein and Ava Hoppenstein Shore) by Andrew La Bella, dated July 17, 2019, with Exhibit 1; Affirmation of Good Faith (re: Abraham Hoppenstein) of Andrew La Bella, Esq., dated July 17, 2019, with Exhibit 1 1, 2, 3, 4, 5 Notice of Cross-Motion by Ross Katz, Esq., for a protective order and stay of proceedings, dated October 2, 2019; Affirmation of Good Faith by Ross Katz, Esq., dated October 2, 2019, with Exhibits A through D; Memorandum of Law dated October 2, 2019 6, 7, 8 Notice of Cross-Motion by Jason J. Smith, Esq., for a protective order and stay of proceedings; Affirmation of Good Faith by Jason J. Smith, Esq., dated September 27, 2019, with Exhibits A through H; Memorandum of Law is Support of Motion for a protective order and stay of proceedings, dated September 27, 2019 9,10,11 Memorandum of Law by Andrew La Bella, Esq., in opposition to cross-motions for protective orders and stay of proceedings, dated October 2, 2019 12 DECISION and ORDER The motion and cross-motions decided at the call of the calendar on October 4, 2019, concern disclosure in the underlying proceeding for the settlement of the account of the trustee of The Reuben Hoppenstein 2005 Trust. The court denied the objectants’ motion to compel compliance with their notices of deposition and demands for documents served on Charles Hoppenstein, Ava Hoppenstein Shore, and Abraham Hoppenstein. The court granted the cross-motions of Charles Hoppenstein and Ava Hoppenstein Shore, and of Abraham Hoppenstein, to the extent they sought protective orders with respect to the objectants’ demands for disclosure. The court denied the cross-motions to the extent they sought a temporary stay of the underlying accounting proceeding. Objectants (a daughter of the settlor and her issue) were discretionary beneficiaries of the 2005 Trust in question. Central to this controversy are the trustee’s distributions in 2011 of all the trust property to new trusts that excluded objectants as beneficiaries, effectively eliminating their interest in the 2005 trust property. Objectants claim that the transfers, ostensibly made pursuant to discretion granted in the trust instrument, were improperly motivated by the trustee’s desire to insulate himself from liability for certain substantial losses in the 2005 Trust. In addition to objectants’ allegations of the impropriety of the 2011 transfers, their numerous other objections relate to the losses themselves. In an order dated July 29, 2019, the court limited discovery at this juncture to “documents and information concerning and limited to the bona fides of the 2011 distributions.” As noted in the order, “[t]here are triable issues of material fact as to whether the trustee breached his fiduciary duty of impartiality to the objecting beneficiaries, and whether the 2011 distributions constituted an abuse of discretion with an improper, self-serving motive.” The order also limited discovery demands issued to Charles Hoppenstein and Ava Hoppenstein Shore to information they possessed, or over which they have control, in their respective capacities as trustees of the new trusts that were the recipients of the 2011 distributions. In new discovery demands served on July 1, 2019, objectants seek broad discovery of facts not relevant to the trustee’s motive in making the distributions, but relating, rather, to complex transactions surrounding the trust’s investments and an allegedly improper loan that became uncollectible; further, they seek information from Charles and Ava in approximately 20 capacities other than their capacities as trustees of the trusts designated in the order. All of the demands request extensive materials in each of 31 different categories. The demands are overbroad and go far beyond the scope of the court’s earlier order. To rule on each item requested in order to bring the disclosure in conformity with its prior ruling would constitute an undue burden on the court. The court has been advised that Abraham Hoppenstein, the trustee and petitioner in the accounting proceeding, died on October 15, 2019. Accordingly, further proceedings are stayed until the earlier of an order of substitution for Mr. Hoppenstein pursuant to CPLR 1015, or appearance by a successor trustee pursuant to SCPA 2207 (3). The court notes that Article NINTH of The Reuben Hoppenstein 2005 Trust provides a mechanism for the appointment of a successor without requiring a court proceeding. This constitutes the order of the court. Clerk to notify. Dated: November 20, 2019
